But high court delays deciding status of anti-Hillary Clinton movie

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WASHINGTON — The Supreme Court declared Monday that white firefighters in Connecticut were unfairly denied promotion because of their race, ruling against minorities in a major reverse discrimination case that could affect bosses and workers nationwide. The justices threw out a decision that high court nominee Sonia Sotomayor had endorsed as an appeals court judge.

In its last session until September, the court's conservative majority prevailed in a 5-4 ruling that faulted New Haven and the courts that had upheld the city's discarding of results of an exam in which no African-Americans scored high enough to be promoted to lieutenant or captain.

In another high-profile case, the court failed to decide on a whether a scathing documentary about Hillary Rodham Clinton should be regulated as if it were a campaign ad.

In the firefighter case, the city said it acted to avoid a lawsuit from minorities, but Justice Anthony Kennedy said in his majority opinion that New Haven's action amounted to discrimination based on race against the white firefighters who were likely to be promoted.

The ruling restricts, but does not eliminate, employers' ability to take diversity into account in employment decisions. But the ruling could make it harder for minorities to prove discrimination based solely on lopsided racial hiring or promotions.

Sotomayor and two appeals court colleagues had ruled the city did the right thing in throwing out the test, and the Supreme Court reversal gave critics fresh ammunition two weeks before her Senate confirmation hearing.

Conservatives said it showed her to be a judicial activist who lets her own feelings color her decisions. "This case will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of a group," said Sen. Jeff Sessions, R-Ala.

On the other hand, the Obama administration and liberal allies said her stance in the case demonstrated her restraint and unwillingness to go beyond precedents established by her own 2nd U.S. Circuit Court of Appeals in New York.

The high court ruling shows "she doesn't legislate from the bench," said presidential spokesman Robert Gibbs. "The Supreme Court clearly had a new interpretation of Title VII of the Civil Rights Act."

Qualified for promotionsCoincidentally, the justices may have given a boost to calls for quick action on her nomination.

The court said it would return Sept. 9 to hear a second round of arguments in the Clinton movie case, and with Justice David Souter retiring there would be only eight justices unless Sotomayor has been confirmed by then.

In Monday's ruling, Kennedy said, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

Labor and employment lawyers suggested that companies that act to encourage and preserve racial, gender and age diversity would need to be very careful to avoid reverse discrimination lawsuits.

For example, said employment lawyer Mark Dichter, an employer might be sued under Monday's ruling for scrapping an unannounced round of layoffs because women, racial minorities or older workers would be disproportionately affected and substituting a different analysis that affected other workers.

"If those facts came out, it would certainly support a reverse discrimination claim," said Dichter, chairman of the Morgan, Lewis law firm's labor and employment division in Philadelphia.

Recipe for success?
In New Haven, Mayor John DeStefano Jr. criticized the court's decision. The court's "interpretation of anti-discrimination law has for some time been showing increasing distance from reasonable and time-tested efforts," he said.

However, lead plaintiff Frank Ricci, speaking from the steps of New Haven's city hall, said the ruling showed that "if you work hard, you can succeed in America."

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, nine blacks and six Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

'Starkly disparate results'The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.

Special September session
Also Monday, the court signaled that it could overturn decades-old laws on how money is spent on federal elections, raising the stakes in a case about a scathing documentary about Clinton.

The high court was expected to release a decision on the Citizens United movie as part of its end-of-the-term wrap up, but in an unusual move the justices said they will hear arguments in the case again in a special session Sept. 9.

In advance of the rare session, the court told the lawyers in the case to focus their arguments on whether its earlier decisions banning certain political speech by corporations, and the corporate and union spending on television advertising during campaigns, should be overturned.

Advocates on both sides said the decision on this case will likely shape federal elections for years to come.

"At stake in the Citizens United case now is whether the Supreme Court is going to take the radical step of striking down the 60-year old ban on corporate expenditures and open the flood gates to immense amounts of corporate wealth being used to directly influence federal campaigns," said Fred Wertheimer, president of the Democracy 21 group.

This is now "a blockbuster case about Americans' First Amendment rights to join together and speak freely about politics," said Steve Simpson, a lawyer with the Institute for Justice. "A majority of the high court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech. This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide."

Movie or campaign ad?Justice Kennedy had warned during oral arguments that the nation's campaign finance laws could be at stake in this case. Government lawyers argued that the documentary was the same thing as a long campaign ad.

Evan Vucci
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AP

David Bossie, leader of Citizens United and producer of "Hillary: The Movie", is seen in his office in Washington.

"If we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall," Kennedy said on March 24.

The case involves Citizens United, a conservative not-for-profit group that wanted to air ads for the movie in Democratic primary states and also make the film available to cable subscribers on demand without complying with federal campaign finance law.

But lower courts have said the movie looked and sounded like a long campaign ad, and therefore should be regulated like one.

At the time of "Hillary: The Movie," the New York senator was competing with Barack Obama for the Democratic presidential nomination. She is now secretary of state in the Obama administration.

The movie is unquestionably anti-Clinton, featuring commentary from conservative pundits, some of whom specifically say she was not fit to be commander in chief. One scene, which was used in an ad, shows Dick Morris describing the senator as "the closest thing we have in America to a European socialist."

Morris, who once served as an adviser to former President Bill Clinton, is now one of the Clintons' harshest critics.

Footing the costCitizens United wanted to pay for its documentary to be shown on home video-on-demand, and for ads promoting the movie to be shown in competitive Democratic primary states.

Federal judges, however, said the movie should be regulated by the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign finance law. Judges called "Hillary: The Movie" a 90-minute attack ad, rulings that would require Citizens United to identify the financial backers for the ads if they were to appear on television.

The court also said that if the group showed the movie on cable television, financial backers would have to be named and the group would have to pay the cost of airing the movie.

The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

The court's composition will be different by the time it rehears the case. Souter plans to retire this month, and Obama has nominated Sotomayor, a judge from the 2nd U.S. Circuit Court of Appeals in New York, to replace him.

Obama and Democrats hope the Senate confirms Sotomayor before the high court session in September. If confirmed, this would be the first case the court would hear with Sotomayor on the bench.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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